Argentina, Federal Court of Appeals of La Plata, 13 June 2022, R., M. I. c/Telefonía Móviles Argentina SA
Case overview
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Deciding body (Original)
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Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
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Outcome of the decision
Link to the full text of the decision
General Summary
Mrs. RM indicated that during the pandemic, the telephone and internet service provider cut off services to her house without any justification and despite various requests and complaints, she could not obtain reconnection. She considered the above to be in violation of her right to access public services, communicate, and be informed, which was especially serious in the context of the pandemic. She thus filed an amparo action against Telefonía Móviles Argentina, requesting that telephone and internet service be reconnected to her home as a precautionary measure. The first instance judge granted the claimant's request and the defendant filed an appeal. The Federal Court of Appeals upheld the first instance decision after determining that the requirements were met: verisimilitude of the right and a danger in the delay.
Facts of the case
Mrs. RM lived with her mother, an older woman. RM indicated that during the pandemic, the telephone and internet service provider cut off telephone and internet services without any justification and that despite her various requests and complaints to the company and consumer authorities, she had not been able to obtain their reconnection. This was particularly worrying because, on the one hand, she needed such services during the pandemic due to movement restriction measures and, on the other, because her mother was an older adult in need of care and who could possibly have an accident with no way of communicating. Therefore, Mrs. RM filed an amparo action against Telefonía Móviles Argentina, requesting that her home be reconnected to the fixed telephone and internet service. The first instance judge granted the claimant's request, and the defendant appealed this decision.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Private individual
Type of procedure
Reasoning of the deciding body
First, the Court indicated that two requirements must be met for a precautionary measure to proceed: the verisimilitude of the right (fumus boni iuris) and a danger of delay (periculum in mora). In other words, examination of the certainty of the existence of a claimed right is not required, but only its likelihood; declaring certainty of the right's existence is a function of the primary decision. After analyzing the case, the Court indicated that the verisimilitude of the right invoked by the plaintiff was sufficiently demonstrated based on the documentation submitted with the complaint, which evidenced both the interruption of fixed telephone and internet services and the lack of response provided by Telefónica Argentina S.A. to the numerous claims made by the plaintiff. The Court pointed out that according to the guidelines of the Ministry in charge of telecommunication matters, companies must resolve such concerns within three days. In this case, after numerous requests were made by the claimant, she had not obtained a response even after the first instance judge's decision. On the other hand, regarding the danger of delay, the Court pointed out that this requirement was verified due to the imminent damage caused to the user by the lack of fixed telephone services and an Internet connection, which was particularly dangerous in the context of the Covid-19 pandemic. To this, it should be added that, given the delicate health condition of the plaintiff's mother, telephone service could be required in an emergency. The Court noted that, in cases such as these, the urgency in granting a precautionary advance arises from the nature of the provision at stake, whose deprivation or deficit of provision involves rights of constitutional reception, which have to do with the protection of the consumer and user, the dignity of people, and access to essential social goods. In this sense, the court established the need to consider the context of the Covid-19 emergency as a scenario of greater risk for the guarantee of fundamental rights in danger, due to the non-provision of a public service that, in this case and conditions, was essential.
Conclusions of the deciding body
The Federal Court of Appeals upheld the first instance decision after determining that the requirements for ordering interim relief were met: verisimilitude of the right and a danger in the delay.
Fundamental Right(s) involved
- Freedom of information
- Right to an effective remedy
- Right to access to utilities
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Consumer's rights, Art. 42, Argentinian Constitution
- Right to access to utilities, Art. 42, Argentinian Constitution
- Right to information, Art. 42, Argentinian Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of expression / right to information
- right to access to utilities
General principle applied
- Equality
- Effective (judicial) protection
Balancing techniques and principles (proportionality, reasonableness, others)
The Court implicitly applied the principle of effective judicial protection after verifying that the claimant had used all possible legal remedies she could against the service provider and consumer protection authority. The Court applied the principle of equality in the evaluation of the precautionary measure. According to this, recognition of the measure is justified in the need to maintain the equality of the parties and prevent an illusory judgment. It stated that the measure was subordinated to the verification of the plausibility of the rights invoked and a danger in the delay. The Court, in innumerable precedents, has established that the dictation of these measures does not require an examination of certainty on the existence of the alleged right, but only of its plausibility. In addition, judgment on the truth of this matter is in opposition to the purpose of the precautionary institute, which is nothing more than attending to what does not exceed the framework of the hypothetical within which, likewise, it exhausts its potentiality. In all precautionary measures, investigation of the right that is postulated is limited to a judgment of probabilities and plausibility.
Other notes
On the type of procedure: urgency and expedited procedures
